Citation Nr: 0605706
Decision Date: 02/28/06 Archive Date: 03/01/06
DOCKET NO. 02-05 797 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Houston, Texas
THE ISSUE
Entitlement to service connection for hypertension.
REPRESENTATION
Veteran represented by: Daniel Krasnegor, Attorney at
Law
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
C. Kedem, Counsel
INTRODUCTION
The veteran served on active duty from January 1957 to
January 1960.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from June 2001 and September 2001 rating
decisions of the RO.
In December 2002, the veteran testified at a hearing before
the Board, and a transcript of his testimony is of record.
By May 2003 decision, the Board denied service connection for
hypertension. The veteran appealed the Board's decision to
the United States Court of Appeals for Veterans Claims
(Court). In May 2004, the opposing parties submitted a Joint
Motion for Remand (motion) to the Court, and by Order dated
that month, the Court granted the motion and remanded the
case to the Board for further action consistent with it.
In January 2005, the Board remanded this case to the RO for
further developmental and procedural action. The case in now
again before the Board.
FINDING OF FACT
Hypertension did not have its onset in active service, did
not manifest itself to a degree of 10 percent or more
disabling in the year after discharge from active service,
and is not otherwise related to service.
CONCLUSION OF LAW
Hypertension was not incurred in active service, nor may it
be presumed to have been so incurred. 38 U.S.C.A. §§ 1112,
1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303,
3.304, 3.307, 3.309(a) (2005).
REASONS AND BASES FOR FINDING AND CONCLUSION
Standard of Review
When there is an approximate balance of positive and negative
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given the claimant. 38
U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49
(1990); 38 C.F.R. § 3.102. When the positive and negative
evidence as to a veteran's claim are in approximate balance,
thereby creating a reasonable doubt as to the merits of a
claim, the veteran prevails. Ortiz v. Principi, 274 F.3d
1361 (Fed. Cir. 2001). If the Board determines that the
preponderance of the evidence is against the claim, it has
necessarily found that the evidence is not in approximate
balance, and the benefit of the doubt rule is inapplicable.
Id. at 1365.
Factual Background
On enlistment examination in January 1957, the veteran's
blood pressure was 138/76 sitting; no pertinent diagnosis was
made. In the corresponding medical history report completed
by the veteran, he denied any history of high or low blood
pressure. The veteran was admitted for inpatient treatment
in February 1957. His blood pressure reading was 126/66 at
that time. During other inpatient treatment in November
1958, his blood pressure was recorded as 138/70 and 120/80.
In a February 1959 report of medical history, the veteran
again denied any problem with high or low blood pressure. He
underwent a discharge medical examination in November 1959.
Again, he denied any history of high or low blood pressure.
His blood pressure measured 100/56 sitting.
VA outpatient records dated from March 1975 to November 2005
reveal that the veteran's blood pressure was taken on
numerous occasions during treatment for various conditions.
These records show blood pressure readings as follows ( the
Board has not recorded every blood pressure reading for the
sake of brevity):
June 1977 - 140/90; June 1977 - 104/66; August 1977 - 140/90;
September 1977 - 110/70; September 1977 - 120/90; July 1979 -
114/80; April 1980 - 134/86; June 1980 - 130/80; May 1982 -
134/80; July 1983 - 130/90.
In June 1986, the veteran presented with complaints of a cut
on his right arm. He also complained of bouts of evening
headaches and sweats. He was concerned about his blood
pressure. A review of systems included complaints of
atypical chest pain. The pertinent diagnosis was
hypertension, essential versus labile. On examination, blood
pressure was 142/100.
A December 1993 treatment note indicates that the veteran's
hypertension was well controlled.
The veteran presented with complaints of hypertension and
nerves in June 1994. When he arrived, his blood pressure was
120/71.
In October 1997, blood pressure was 139/82.
An April 2000 medical notation indicated that the veteran had
a history of hypertension that had its onset one to two
decades prior. The veteran was admitted for inpatient care
in August 2000 with a diagnosis of chest pain, hypertension,
hypercholesterolemia. Blood pressure was 141/75. During a
work-up for a hemorrhoidectomy, doctors discovered that the
veteran had unstable angina. His blood pressure was noted to
be well controlled on medication. The veteran underwent a
coronary artery bypass graft in September 2000.
F. Thomas, D.O., wrote a report in August 2001 indicating
that the veteran had a long history of headaches and
hypertension.
B.A. Martin, M.D., stated by letter dated in May 2002 that
his former colleagues, Drs. B. Geringer and J. Koloja had
treated the veteran. Dr. Martin indicated that their former
records and documentation reflected a long history of
hypertension dating back to 1958 and that the veteran
continued to have essential hypertension and multiple related
complications.
At his December 2002 hearing before the Board, the veteran
testified that he had hypertension was found but not treated
in service. He also indicated that after discharge, a
physician in Manhattan, Kansas asked if he was receiving
treatment for hypertension. He indicated that he was told by
post-service physicians that he should have received
treatment for hypertension in service.
A January 2003 blood pressure reading indicated blood
pressure of 131/74. In December 2004, the veteran's blood
pressure was 176/81. In February 2005, the veteran's blood
pressure measurement ranged from 123/56 to 176/76. In March
2005, the veteran's blood pressure ranged from 115/74 to
156/80. In November 2005, the veteran's blood pressure
measured 168/78.
Law and Regulations
Service connection may be established for disability
resulting from personal injury suffered or disease contracted
in line of duty in the active military, naval, or air
service. 38 U.S.C.A. §§ 1110, 1131. That an injury or
disease occurred in service is not enough; there must be
chronic disability resulting from that injury or disease. If
there is no showing of a resulting chronic condition during
service, then a showing of continuity of symptomatology after
service is required to support a finding of chronicity. 38
C.F.R. § 3.303(b). Service connection may also be granted
for any injury or disease diagnosed after discharge, when all
the evidence, including that pertinent to service,
establishes that the disease or injury was incurred in
service. 38 C.F.R. § 3.303(d).
Service connection for certain diseases, including
hypertension, may also be established on a presumptive basis
by showing that the disease manifested itself to a degree of
10 percent or more within one year from the date of
separation from service. 38 U.S.C.A. §§ 1101, 1112;
38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the
disease is presumed under the law to have had its onset in
service even though there is no evidence of such disease
during the period of service. 38 C.F.R. § 3.307(a).
Hypertension is high arterial blood pressure. Dorland's
Illustrated Medical Dictionary 801 (28th ed. 1994). Various
criteria for its threshold have been suggested, ranging from
140 systolic (the top or first number of the blood pressure
reading, e.g., "140"/90) and 90 diastolic (the bottom or
second number, e.g., 140/"90") to as high as 200 systolic
and 110 diastolic. Id. Under the VA Schedule for Rating
Disabilities a 10 percent rating is assigned for hypertension
where diastolic pressure is predominantly 100 or more or
systolic pressure is predominantly 160 or more or for an
individual with a history of diastolic pressure of 100 or
more who requires continuous medication for control.
38 C.F.R. § 4.104, Diagnostic Code 7101.
Analysis
Medical evidence in the claims file shows that the veteran
currently has hypertension, and that matter is not in dispute
in this case. The Board notes that the existence of a
present disability is a necessary condition, but not the only
one, for establishing entitlement to service connection.
38 C.F.R. § 3.303; Degmetich v. Brown, 104 F. 3d 1328, 1332
(1997) (holding that interpretation of sections 1110 and 1131
of the statute as requiring the existence of a present
disability for VA compensation purposes cannot be considered
arbitrary). The remaining question before the Board is
whether the veteran's current hypertension began in service
or is otherwise related to service.
The service medical records are silent regarding a diagnosis
of hypertension. Indeed, there is no diagnosis of
hypertension in the record until June 1986. The Board is
mindful of the veteran's testimony that he was told in
service that he had high blood pressure; however, this is not
corroborated by treatment records. Rather, review of service
medical records discloses blood pressure readings all within
the normal range. With the exception of one medical
statement, which the Board finds of insufficient probative
weight as explained below, there is no competent medical
evidence of a nexus between the veteran's hypertension and
service. Thus, service connection for hypertension must be
denied. 38 C.F.R. § 3.303.
The Board recognizes Dr. Martin's assertion that his
colleagues' records indicated a history of hypertension
dating back to 1958. However, the Board finds Dr. Martin's
statements to be of insufficient probative value for service
connection purposes because the service medical records,
including those dated later than 1958, reflect no diagnosis
or treatment of hypertension. Moreover, Dr. Martin's
assertions appear to be based upon a history provided by the
veteran and not upon a review of the record. The Board notes
that evidence consisting of information recorded by a medical
examiner, unenhanced by any additional medical comment by
that examiner, does not constitute "competent medical
evidence." Leshore v. Brown, 8 Vet. App. 406, 409 (1995);
Swann v. Brown, 5 Vet. App. 229, 233 (1993); Reonal v. Brown,
5 Vet. App. 458, 461 (1993). Thus, because Dr. Martin's
assertions are based on uncorroborated statements of the
veteran, they do not constitute competent medical evidence.
Dr. Martin did not disclose the type of records he reviewed
and the date of the records, he did not provide copies of the
stated records, and he did not supply any rationale for his
conclusions. For all of the foregoing reasons, the Board
does not find the assertions of Dr. Martin probative of
service connection, and service connection for hypertension
will not be granted based upon them. Concerning this, the
Board notes that VA decision makers have discretion to accept
or reject pieces of evidence provided that sufficient reasons
and bases are set forth explaining such actions. Hayes v.
Brown, 5 Vet. App. 60, 69- 70 (1993), citing Wood v.
Derwinski, 1 Vet. App. 190, 192-193 (1992).
In addition, the Board finds Dr. Martin's statement less
credible than other evidence of record because it is
inconsistent with that other evidence. In this regard, the
Board notes that it must analyze the credibility and
probative value of the evidence, account for the evidence
which it finds to be persuasive or unpersuasive, and provide
the reasons for its rejection of any material evidence
favorable to the veteran. See Gabrielson v. Brown, 7 Vet.
App. 36, 39-40 (1994); Abernathy v. Principi, 3 Vet. App.
461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622
(1992); Peyton v. Derwinski, 1 Vet. App. 282, 285 (1991);
Hatlestad v. Derwinski, 1 Vet. App. 164, 169-70 (1991);
Ohland v. Derwinski, 1 Vet. App. 147, 149 (1991); Gilbert v.
Derwinski, 1 Vet. App. 49, 57 (1990). "[D]efinitions of
credibility do not necessarily confine that concept to the
narrow peg of truthfulness. It has been termed as 'the
quality or power of inspiring belief. . . .'
Credibility . . . apprehends the over-all evaluation of
testimony in the light of its rationality or internal
consistency and the manner in which it hangs together with
other evidence." Indiana Metal Prods. v. NLRB, 442 F.2d 46,
51-52 (7th Cir. 1971) (citations omitted).
Dr. Martin indicated a history of hypertension dating back to
1958. In April 2000, a VA examiner indicated a history of
hypertension that developed one to two decades prior. The
latter assessment is apparently based on a history provided
by the veteran and contradicts information he provided to Dr.
Martin. In any event, the history provided by the veteran in
April 2000 is more credible because it is consistent with the
time frame of the first diagnosis of hypertension in the
record, that is, June 1986. Thus, the April 2000 assessment
is more credible than Dr. Martin's because it "hangs
together" in a consistent manner with other evidence of
record.
Accordingly, the Board finds that the most probative evidence
reveals a gap of about a quarter of a century between service
and the first diagnosis of hypertension. There is no
competent and credible evidence linking hypertension to
service. Absent such a nexus, service connection for
hypertension may not be granted. 38 C.F.R. § 3.303.
Finally, with regard to whether service connection, may be
established on a presumptive basis by showing that the
disease manifested itself to a degree of 10 percent or more
within one year from the date of separation from service, the
Board notes that there is no evidence in this case of the
existence of hypertension within one year from the date of
separation from service. 38 U.S.C.A. §§ 1101, 1112;
38 C.F.R. §§ 3.307(a)(3), 3.309(a). As the Board found
above, hypertension was not diagnosed until many years after
service, and it was not shown during the first post-service
year. Without a showing of hypertension in the first year
after service, service connection cannot be granted for
hypertension on a presumptive basis. 38 U.S.C.A. §§ 1101,
1112; 38 C.F.R. §§ 3.307, 3.309.
In reaching this determination the Board considered the
benefit of the doubt doctrine, but finds that the objective
evidence is overwhelmingly against the claim. Because the
evidence preponderates against the claim, the doctrine is not
for application. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see
Gilbert, 1 Vet. App. at 54.
Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A.
§§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp.
2005)), imposes obligations on VA in terms of its duties to
notify and assist those claiming VA benefits.
The VCAA notice requirements have been satisfied by virtue of
letters sent to the veteran in April 2001 and June 2005.
Those letters advised the veteran of what information and
evidence was needed to substantiate the claim decided herein
and of his and VA's respective duties for obtaining evidence.
Quartuccio v. Principi, 16 Vet. App. 183 (2002). He was
specifically told that it was his responsibility to support
the claim with appropriate evidence. The veteran has not
alleged that VA failed to comply with the notice requirements
of VCAA. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005).
In addition, by virtue of the rating decisions on appeal, the
statement of the case, and the supplemental statements of the
case, he was provided with specific information as to why the
claim was denied and of the evidence that was lacking. He
was also supplied with the complete text of 38 C.F.R.
§ 3.159(b)(1) in the November 2005 supplemental statement of
the case.
The RO's June 2005 letter specifically told the veteran that
VA needed the medical records from the private physicians
which the Court ordered VA to attempt to get on remand. The
RO provided him with release of information forms for him to
complete to enable VA to attempt to get those records.
However, the veteran failed to return the release forms or
otherwise respond to this request for information. The Board
concludes that the veteran was fully notified of the need to
give to VA any evidence pertaining to the claim. There is no
allegation from the veteran that he has any evidence in his
possession that is needed for a full and fair adjudication of
this claim. When considering the notification letters, the
rating decisions on appeal, the statement of the case, and
the supplemental statements of the case as a whole, the Board
finds that he was aware that it was ultimately his
responsibility to give VA any evidence pertaining to the
claim. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21
(2004) (Pelegrini II).
In concluding that the VCAA notice requirements have been
satisfied, the Board has relied on communications other than
the RO's formal VCAA notice letters to the veteran. However,
what VCAA seeks to achieve is to give the veteran notice of
the elements discussed in Pelegrini II. Once that is done-
whether by a single notice letter or via more than one
communication-the essential purposes of VCAA have been
satisfied. Here, because each of the four content
requirements of a VCAA notice has been met, any error in not
providing a single notice to the veteran covering all content
requirements was harmless. See, e.g., 38 C.F.R. § 20.1102
(2004); Mayfield, supra.
The Board also concludes VA's duty to assist has been
satisfied. The veteran's service medical records are in the
file as are post service VA and sufficiently identified
private medical records. The record also contains records
pertaining to the veteran's claim for Social Security
Administration disability benefits. The claimant has at no
time referenced with specificity outstanding records that he
wanted VA to obtain or that he felt were relevant to the
claim.
The duty to assist also includes providing a medical
examination or obtaining a medical opinion when such is
necessary to make a decision on the claim, as defined by law.
Under 38 U.S.C.A. § 5103A(d), VA is required to provide a
medical examination or obtain a medical opinion if (1) there
is competent evidence of a current disability, and (2)
evidence that the disability or symptoms may be associated
with service, but (3) the case does not contain sufficient
medical evidence for the Secretary to make a decision on the
claim. However, under 38 U.S.C.A. § 5103A(a)(2), VA is not
required to provide assistance to a veteran if no reasonable
possibility exists that such assistance would aid in
substantiating the claim.
In the instant case, a medical examination need not be
provided because there is no competent evidence that the
veteran's hypertension may be associated with service. Thus,
and medical examination is unnecessary and not required by
applicable law and regulations. Id.; 38 U.S.C.A.
§ 5103A(d)(2); see also 38 C.F.R. § 3.159(c)(4).
VA satisfied its duties to inform and assist the veteran at
every stage of this case. Therefore, he is not prejudiced by
the Board's consideration of the merits of the claim in this
decision.
ORDER
The appeal is denied.
____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs